LIM Yew Chye & Sons Realty Development Sdn Bhd v 1. ) Irama Setia Sdn Bhd (BA-22NCvC-250-06/2024)

AND IRAMA SETIA SDN BHD [No. 202201006329 (1452026-T)]

SAN TAT CONSTRUCTION SDN BHD [(No. 199901013503 (488403-T)] … DEFENDANTS GROUNDS OF JUDGMENT (Enclosure 6 – Application for Interim Injunction)

This is the Court’s grounds of decision on the Plaintiff’s application for an interim injunction vide Enclosure 6, seeking to restrain the Defendants, their agents, contractors, and servants from entering, encroaching, or carrying out any work upon the Plaintiff’s land pending the disposal of this action. 14/11/2025 11:26:19

The Plaintiff, Lim Yew Chye & Sons Realty Development Sdn Bhd (“the Plaintiff”), is the registered proprietor of several parcels of land located in Bandar Kuala Kubu Baharu, Selangor, forming part of Geran Mukim 44476 Lot 1026, Mukim Ampang Pecah, Daerah Hulu Selangor. The total area measures approximately twenty-eight (28) acres, subdivided into 257 individual lots, of which 108 residential lots and three open-space lots (for utilities and green areas) are the subject of this claim.

The 1st Defendant, Irama Setia Sdn Bhd (“D1”), is the developer of a mixed development project known as Laman Lantera situated on an adjoining parcel, Lot 5272 (GM 3955), within the same Mukim. The 2nd Defendant, San Tat Construction Sdn Bhd (“D2”), is the civil and infrastructure works contractor appointed by D1 for the said project. The 1st Defendant chose not to appeal on this case.

The Plaintiff’s complaint is that between October 2023 and June 2024, the Defendants had, without consent or authority, entered upon the Plaintiff’s land, carried out earthworks, excavations, slope formation, and the construction of drains and other works extending beyond their boundary. It is alleged that the Defendants also removed and sold soil and sand extracted from the Plaintiff’s land for profit.

The Plaintiff contends that these acts constitute trespass and have caused substantial and continuing loss, including destruction of trees, alteration of natural contours, reduction in elevation, and depreciation in the value of the affected lots. It is further alleged that the acts were committed deliberately and in bad faith for commercial advantage.

Accordingly, the Plaintiff seeks the following interim reliefs pending trial: i) A prohibitory injunction restraining further encroachment; ii) A mandatory injunction directing restoration of the land to its original condition; and iii) Such further orders as the Court deems just.

The Plaintiff became aware of the encroachment around October 2023 when its site supervisors observed heavy machinery operating beyond the demarcation line separating its land from D1’s project site. Correspondence and photographs were subsequently exchanged between the parties.

By letter dated 30 May 2024, the Plaintiff’s solicitors demanded that D1 and D2 cease all works and vacate the land immediately. Despite this demand, the Plaintiff alleges that the Defendants continued operations, prompting the filing of this action on 21 June 2024.

The writ and statement of claim, subsequently amended on 26 June 2024, assert causes of action in trespass, conversion, and unjust enrichment, together with prayers for damages (general, special, and exemplary), an account of profits, and injunctive relief.

The Defendants entered appearance and filed statement of defence denying liability and resisting the injunction. D1 maintains that it has since erected hoarding fences along the common boundary and undertaken not to trespass. D2 denies any encroachment, asserting that all works were confined within the boundaries certified by D1’s land surveyor.

The Plaintiff’s learned counsel submitted that trespass to land is actionable per se, requiring no proof of damage. The right to possession of land is a proprietary right protected under the National Land Code and Article 13 of the Federal Constitution.

The Plaintiff relied on the principles established in Keet Gerald Francis Noel John v Mohd Noor bin Abdullah [1995] 1 MLJ 193, that the grant of an interlocutory injunction depends on:

the existence of a serious issue to be tried;

(ii) whether damages would be an adequate remedy; and

(iii) the balance of convenience between the parties.

It was further submitted that the acts of the Defendants, as shown by photographs and plans annexed to the supporting affidavit, clearly demonstrate encroachment upon the Plaintiff’s land, with the construction of slope works and drains cutting across its boundary. The Plaintiff therefore has a strong prima facie case.

Counsel contended that the Plaintiff, being the registered proprietor, is entitled ex debito justitiae to protection of its property rights. Reference was made to Chen Yue Kiew v Angkasama Sdn Bhd [2003] 3 CLJ 781, where the High Court held that a landowner is entitled to injunctive relief as of right when trespass is established.

On the issue of adequacy of damages, counsel argued that land is unique; its possession cannot be adequately compensated by money. The wrongful removal of soil, destruction of trees, and alteration of terrain are irreversible injuries that warrant immediate injunctive protection.

On balance of convenience, it was submitted that the Plaintiff merely seeks to restrain unlawful acts. The Defendants, having no right to enter the land, would suffer no prejudice from an injunction, whereas the Plaintiff risks permanent loss and reputational harm if trespass continues.

The Plaintiff further submitted that the Defendants’ actions were undertaken mala fide, motivated by the desire to expand D1’s project area and increase its commercial value. The case of Tenaga Nasional Berhad v Bukit Lenang Development Sdn Bhd [2019] 1 CLJ 42 was cited for the principle that private rights cannot be subordinated to alleged public or development interests.

Finally, the Plaintiff argued that D1’s own affidavit admitting to having “touched the boundary” and later installing fencing confirms the trespass. The Plaintiff therefore urges the Court to grant the injunction to preserve the status quo ante pending trial.

2nd Defendant’s Case 19. The 2nd Defendant’s learned counsel opposed the injunction primarily on evidential and procedural grounds. It was contended that the Plaintiff failed to produce any credible or technical evidence to prove encroachment.

The affidavit in support was affirmed by one Kenny Lim @ Lim Kah Joo, a director of the Plaintiff company who is not a licensed land surveyor. The deponent’s statements as to boundary and encroachment are inadmissible opinions. No certified survey report or authenticated plan was filed.

Reliance was placed on Sabrina Sobri v Perkanas Sdn Bhd [2012] 7 MLJ 383, where the Court held that surveyor evidence is essential in proving boundary encroachment. Mere photographs or assertions by laypersons are insufficient.

The 2nd Defendant further argued that the Plaintiff failed to identify specific individuals or machinery allegedly involved in trespass. As a corporate body, D2 can only act through its employees or agents. Without identifying such persons, liability cannot be established, referring to Haji Abdul Rahman v Government of Malaysia [1966] 2 MLJ 174.

It was also submitted that the Plaintiff failed to show actual possession or use of the affected land. No fencing, occupation, or demarcation was proven. The absence of physical control undermines the allegation of trespass.

Counsel emphasised that injunctions are discretionary and exceptional. The Plaintiff’s evidence is weak, and any loss can be quantified in damages. The 2nd Defendant urged that the application be dismissed with costs.

1st Defendant’s Case 25. The 1st Defendant’s learned counsel submitted that the application has become academic. D1 has voluntarily undertaken, by letter dated 18 June 2024, not to enter the Plaintiff’s land and has since erected hoarding fences clearly separating the properties.

Hence, there is no ongoing trespass or live controversy. The relief sought has been satisfied. The Court should not expend resources on hypothetical or moot matters.

In support, counsel cited Sun Life Assurance Co of Canada v Jervis [1944] 1 All ER 469 and Metramac Corp Sdn Bhd v Fawziah Holdings Sdn Bhd [2006] 3 CLJ 177, affirming that courts should decline to adjudicate academic issues that no longer affect parties’ rights.

The decision in Datuk Syed Kechik bin Syed Mohamed v Board of Trustees of the Sabah Foundation [1999] 1 CLJ 325 was also relied upon for the principle that courts do not issue declarations or injunctions in abstract circumstances.

Counsel further argued that the Plaintiff acted mala fide and abused the court process. Having been aware of the undertaking and physical fencing, the Plaintiff persisted with the application purely to pressure the Defendants.

The 1st Defendant also contended that the authorities cited by the Plaintiff, particularly Keet Gerald and Chen Yue Kiew, are distinguishable. Those cases involved continuing trespass without remedial undertakings, unlike the present matter where the alleged wrongdoing has ceased.

From the pleadings,affidavits and submissions, the following issues arise for determination: i) Whether the Plaintiff has established a serious issue to be tried regarding alleged trespass; ii) Whether damages are an adequate remedy or injunctive relief is warranted; iii) Whether the balance of convenience lies in favour of granting or refusing the injunction; iv) Whether the application has become academic or moot by reason of the 1st Defendant’s undertaking and erection of hoarding fences; and v) Whether any special factors or conduct justify the exercise or withholding of the Court’s equitable discretion.

The Court’s power to grant interlocutory injunctions is governed by section 50 of the Specific Relief Act 1950 and Order 29 rule 1 of the Rules of Court 2012.

The principles applicable are well established in Keet Gerald Francis Noel John v Mohd Noor bin Abdullah [1995] 1 MLJ 193, which adopted the English test in American Cyanamid Co v Ethicon Ltd [1975] AC 396. The Court must consider:

whether there is a serious issue to be tried;

whether damages would be an adequate remedy; and

where the balance of convenience lies.

The threshold for “serious issue” is not one of proof on balance of probabilities, but whether the claim is not frivolous or vexatious and raises a bona fide dispute deserving trial.

In cases of trespass, it is settled law that the tort is actionable per se. Once proprietary right and unlawful entry are shown, liability follows without proof of actual damage. See Chen Yue Kiew (supra) and Amsiah Rahim v Borneo Samudera Sdn Bhd [2024] 9 MLJ 217.

However, the Court retains discretion to decline injunctive relief if damages are sufficient or if the relief would serve no practical purpose, as observed in Keet Gerald (supra).

Equity acts to prevent continuing or threatened wrongs, not to punish past conduct. Where an undertaking or physical demarcation exists, the Court must assess whether any real risk of recurrence remains.

The authorities on mootness, particularly Metramac and Syed Kechik, guide that the Court should refrain from determining issues that no longer affect parties’ substantive rights.

Nevertheless, the respondent’s voluntary cessation of the impugned conduct does not, by itself, render the injunction application academic. The Court of Appeal in Expro Marine Sdn Bhd v Amalgamated Plant Engineering Sdn Bhd [2022] 1 CLJ 61 made clear that a party cannot defeat or neutralise injunctive relief simply by stopping or terminating the challenged act. So long as the underlying rights remain in dispute and there is a real possibility of the conduct recurring, the court retains discretion to grant an injunction to preserve the status quo pending final determination.

Finally, the grant of an injunction is a discretionary remedy grounded in conscience and equity. The applicant must approach the Court with clean hands and make full and frank disclosure of material facts.

Having considered the affidavits, exhibits, and written submissions of all parties, the Court proceeds to address each of the issues identified in paragraph 31 above in sequence.

Whether a Serious Issue to Be Tried Exists 42. The threshold for this limb is low. The Court does not at this interlocutory stage make definitive findings of fact but determines whether the Plaintiff has raised a bona fide dispute worthy of trial.

The Plaintiff’s title is undisputed. The land is registered under Geran Mukim 44476 Lot 1026, Mukim Ampang Pecah, and the Plaintiff is the lawful proprietor. That fact alone establishes the proprietary foundation necessary for an action in trespass.

Photographs exhibited (Exh. K-5) depict heavy machinery operating beyond the alleged boundary, slope cuts running into the Plaintiff’s side, and removal of soil. Although these are unverified by a licensed surveyor, they are consistent with physical encroachment.

Moreover, the 1st Defendant’s own affidavit admits that certain works were “carried out close to or touching the boundary line” and that fencing was subsequently erected “to avoid further misunderstanding.” Such admission, though qualified, is a material acknowledgment that interference with the boundary occurred.

In the Court’s view, these materials disclose a genuine triable issue whether the Defendants trespassed upon the Plaintiff’s land. The first limb in Keet Gerald (supra) is therefore satisfied.

Whether Damages Would Be an Adequate Remedy 47. The second limb requires the Court to consider whether monetary compensation would sufficiently redress the alleged harm.

The Plaintiff complains not only of temporary disturbance but of permanent alteration of its terrain-tree felling, slope formation, and removal of soil, all of which affect future development potential.

It is trite that land is unique; loss of possession or change in topography cannot be restored by damages alone. (See Chen Yue Kiew, supra).

The 2nd Defendant argues that damages are quantifiable. However, the extent of the alleged excavation and impact on infrastructure reserves cannot presently be assessed with precision. The Court is persuaded that the harm, if proven, is not purely pecuniary.

Accordingly, damages would not be an adequate remedy. This limb too is satisfied in favour of the Plaintiff.

Balance of Convenience 52. The Court must weigh the risk of injustice from granting or withholding relief.

If no injunction is granted and the Defendants continue or resume work, the Plaintiff faces the risk of further irreversible encroachment.

If the injunction is granted, the Defendants would merely be restrained from entering land which they claim not to own. They remain free to continue construction within their own lot.

The Defendants have already erected hoarding fences. Maintaining that physical separation imposes no undue hardship.

The balance of convenience, therefore, favours preservation of the status quo ante through a limited prohibitory injunction.

Whether the Application Is Academic or Moot 57. The 1st Defendant argues that the matter has been overtaken by events, as the alleged trespass has ceased and undertakings given.

This Court agrees that the existence of a bona fide undertaking is a relevant factor. However, an undertaking is not equivalent to a final adjudication. Until trial determines liability, the Plaintiff remains entitled to protective relief if risk of repetition persists.

As observed in Expro Marine Sdn Bhd v Amalgamated Plant Engineering Sdn Bhd [2022] 1 CLJ 61, cessation of a wrongful act does not ipso facto render proceedings academic if the underlying right remains disputed.

Here, the parties still contest ownership of the affected strip and the extent of encroachment. The application therefore retains live significance.

Nevertheless, the Court notes that D1’s fencing has effectively halted active trespass. The need is thus for preservation, not punitive restraint.

Whether Special Factors or Conduct Justify Equitable Discretion 62. Equity requires that an applicant come with clean hands and make full disclosure. The Plaintiff acted promptly upon discovering the encroachment and disclosed the relevant correspondence, including D1’s undertaking. There is no material non-disclosure.

The Defendants too have acted responsibly after the dispute surfaced by installing hoardings. Their good faith mitigates, but does not extinguish, the Plaintiff’s equitable claim.

Weighing all circumstances, the Court finds no conduct warranting denial of equitable relief.

The cumulative assessment of all limbs under Keet Gerald shows that the Plaintiff has crossed the requisite threshold.

The trespass complaint raises serious issues of fact; damages are inadequate; and the balance of convenience supports interim restraint.

The injunction sought shall therefore be granted, but confined to the minimum necessary to protect the Plaintiff’s proprietary interest pending trial.

The Court is mindful that the Plaintiff also prayed for a mandatory order compelling immediate restoration. Mandatory injunctions at an interlocutory stage are granted only in exceptional circumstances where the wrong is clear and the remedy urgent.

In Shepherd Homes Ltd v Sandham [1971] 1 Ch 34, it was held that such relief will not be granted unless the Court can feel a high degree of assurance that the injunction will compel nothing that might later prove unjust.

Here, the extent of encroachment and the feasibility of restoration are disputed and require expert evidence. Granting a mandatory injunction now would effectively decide contested facts prematurely.

The Court thus declines to grant the mandatory limb at this stage. It shall remain a matter for determination after trial.

The appropriate order is therefore a limited prohibitory injunction, coupled with directions preserving existing boundary demarcations.

For reasons set out above, the Court makes the following orders:

A prohibitory injunction is hereby granted restraining the 1st and 2nd Defendants, their servants, agents, contractors, or any persons acting on their behalf, from entering upon or carrying out any works on the Plaintiff’s land described as Geran Mukim 44476 Lot 1026, Mukim Ampang Pecah, Daerah Hulu Selangor, pending the full and final determination of this action or further order of this Court.

The Defendants shall maintain all existing hoarding fences and boundary markers presently erected along the interface between Lot 5272 (GM 3955) and the Plaintiff’s property and shall not remove or realign the same without leave of the Court.

The Plaintiff’s prayer for an interim mandatory injunction directing restoration of land is refused at this stage, without prejudice to the Plaintiff’s right to renew or pursue such relief at trial.

The Plaintiff’s claim for damages and account of profits shall be reserved for trial.

Costs of this application shall be costs in the cause.

This case underscores the principle that proprietary rights of registered landowners must be jealously protected, even in the face of neighbouring development.

Developers and contractors are reminded that self-help measures beyond their surveyed boundaries invite liability, regardless of intention or ultimate benefit to the community.

Equally, the Court recognises that interlocutory relief must not unnecessarily stifle legitimate development; hence the careful balance achieved herein.

By tailoring the injunction to preserve boundaries without halting lawful works, the Court reconciles proprietary justice with practical fairness.

In conclusion, the Court finds:

there exists a serious triable issue of trespass;

damages are inadequate;

the balance of convenience lies with the Plaintiff;

the matter is not rendered academic by D1’s undertaking; and

equitable discretion supports a limited injunction. 20 79. Accordingly, the application is allowed to the extent stated in paragraph 73 above. Dated this 03 November 2025 -sgd- ………………………………….. Datin Asmah binti Musa Pesuruhjaya Kehakiman Mahkamah Tinggi Malaya Mahkamah Tinggi Shah Alam Counsel for Plaintiff : Mr. Gurdit Singh (Mr Chew Zhen Nen and Mr. Marcus Lim Wan Peng with him) Tetuan Aziz & Co Counsel for 1st Defendant : Mr. H.C Tan Tetuan H. C Tan & Zahani Counsel for 2nd Defendant : Mr. Reuben Ong Shen Myn